Can Penn State and Joe Paterno be Held Accountable for Failing to Act?

Miley Legal Group

By now, everyone is aware of the firing of Joe Paterno and others at Penn State in the wake of the Jerry Sandusky child sexual abuse scandal. One question that many are asking as the Penn State story unfolds is “can the school or its employees, including Joe Paterno, be held legally accountable for failing to act?”

In criminal terms, the answer can be yes, depending on the facts of the case. The rarely used criminal term for concealing or failing to report the commission of a felony as soon as possible to civil authorities (law enforcement) is “misprision of felony.” This offense is defined as “[w]hoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.” 18 U.S.C.A. § 4. To be guilty of this crime, however, requires active concealment of a known felony rather than merely failing to report it. Any person convicted of this crime is subject to a fine and up to three years in prison.

In Pennsylvania, rape is a first-degree felony and includes having sexual intercourse with a complainant that is less than 13 years old. 18 Pa.C.S.A. § 3121. Thus, if Paterno (or anyone else) was aware that Jerry Sandusky sexually assaulted a child and failed to report the act to authorities (not their employers or superiors) as soon as possible, they may be subject to Federal prosecution for “misprision of felony” and face jail time.

In civil terms, the answer is not as clear. Generally, one does not have an obligation (legal duty) to prevent the civil wrongs of third-parties (such as might be alleged by Sandusky’s subsequent victims), absent a special relationship. Examples of special relationships usually include ones involving parents and children, schools and students, doctors and patients, to name a few. Here, however, Paterno and the other officials were strangers to the victims, making it harder to establish liability.

However, in Pennsylvania, it has been recognized that a special relationship may be inferred from the general duty not to place others at risk of harm through their action. In simple terms, if a court or a jury were to conclude that Paterno and the other officials should have foreseen that failing to turn Sandusky in to law enforcement would lead to other children being victimized, then those subsequent victims will have a good chance of holding Penn State and its officials civilly accountable.